Sport Is for Everyone: A Legal Roadmap for Transgender Participation in Sport
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Journal of Legal Aspects of Sport, 2021, 31, 212 – 252
https://doi.org/10.18060/25601
© Erin Buzuvis, Sarah Litwin, and Warren K. Zola
Sport Is for Everyone: A Legal Roadmap
for Transgender Participation in Sport
Erin Buzuvis, Sarah Litwin, and Warren K. Zola
Introduction
Sport is a vehicle for social change and should be leveraged as such in 2021 and
beyond to address matters of equality. In recent years, the public has paid greater
attention to transgender athletes participating in sport at all levels—high school,
collegiate, professional, and Olympic—despite the fact that transgender athletes
have been competing in sports for decades.1 Backlash has arisen in general but
also more specifically in response to several recent Supreme Court cases that
have both solidified and extended rights of lesbian, gay, bisexual, transgender,
and other gender and sexual minorities.2 In turn, state laws that seek to limit
the rights of transgender students to participate in sports have been drafted
around the country.3 To be sure, these laws are often built on erroneous data, a
misunderstanding of facts, and ignorance, but their existence continues to fuel
the public debate on whether transgender athletes should be allowed to participate
based on their gender identity or their sex as determined at birth.
1
Gillian R. Brassil and Jeré Longman, Who should compete in women’s sports? There are
‘two almost irreconcilable positions’, N.Y. Times (Aug. 18, 2020), https://www.nytimes.
com/2020/08/18/sports/transgender-athletes-womens-sports-idaho.html.
2
Julie Moreau, Advocates brace for anti-LGBTQ backlash at state level after Biden victory, NBC
News (Jan. 26, 2021), https://www.nbcnews.com/feature/nbc-out/advocates-brace-anti-lgbtq-back-
lash-state-level-after-biden-victory-n1255606.
3
See Idaho Code § 33-6203.
Erin Buzuvis, JD, is the Associate Dean for Academic Affairs and Professor of Law at Western
New England University in Springfield, Massachusetts. She researches and writes about Title IX
and gender and discrimination in sport. Email: ebuzuvis@law.wne.edu
Sarah Litwin is a JD student at Boston College Law School. Her research interests include tech-
nology, education, sports, and employment law. Email: sarah.litwin@bc.edu
Warren K. Zola, JD, MBA, is the Executive Director of the Boston College Chief Executives Club
and adjunct faculty member in the Carroll School of Management at Boston College. His research
interests include the intersection of antitrust and labor law in sports, college athletics, and gender
and discrimination in sport. Email: warren.zola@bc.eduJLAS 31-2 ▪ 2021 213
If sponsors of these bills aren’t explicitly discriminatory in their rhetoric,
the acceptable public rationale against transgender athletes participating assert
that doing so creates an unfair competitive advantage.4 This position is most fre-
quently espoused when discussing transgender women playing women’s sports,
as the perception is that someone born male will have an unfair competitive
advantage over women based on physical stereotypes.5 Specifically, three argu-
ments are often put forth in this regard. First, that transgender women are not
“real” women and therefore should not be afforded the same opportunity as other
women.6 Second, that transgender women would have physical advantages over
cisgender women.7 And third, that men might fraudulently claim to be a trans-
gender woman in order to seek a perceived competitive advantage to compete
and dominate against other women.8 Each of these arguments will be addressed
directly later in this article.9
While the law supports transgender athletes participating in sports based on
their gender identity, opponents continue to object, primarily based on the afore-
mentioned claims. Arguments cite physical advantages or loss of opportunities
for cisgender girls and women, but in reality, they are often merely a distraction
from outward discrimination. So, consider the following truth, transgender
athletes pose no threat. Transgender women have been competing in sports for
decades. There is no transgender athlete takeover at the high school or collegiate
level. Not a single transgender athlete has ever won an Olympic medal in any
sport. The basis of the argument to exclude transgender athletes from competing
is rooted in stereotypes about unsettling the status quo rather than reality, and
federal law explicitly prohibits such discrimination.
4
Sean Ingle, Trans women retain 12% edge in tests two years after transitioning, study finds, The
Guardian (Dec. 7, 2020), https://www.theguardian.com/sport/2020/dec/07/study-suggests-ioc-ad-
justment-period-for-trans-women-may-be-too-short.
5
See Clark v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1131 (9th Cir. 1982) (holding that “males
would displace females to a substantial extent” if boys could try-out for an all-girls volleyball
team because of average physiological differences).
6
For a brief overview of the terminology surrounding transgender, please refer to GLAAD’s
website for a glossary of terms they recommend to the media for correct usage. These terms in-
clude: sex, gender identity, gender expression, sexual orientation, transgender, transsexual, trans,
and cis- and cisgender. GLAAD, https://www.glaad.org/reference/transgender (last visited Feb.
25, 2021).
7
Ashley Schwartz-Lavares, et al., Trans women targeted in sports bans, but are they really
at an advantage?, ABC News (April 7, 2021), https://abcnews.go.com/US/trans-women-target-
ed-sports-bans-advantage/story?id=76909090.
8
Chase Strangio and Gabriel Arkles, Four myths about trans athletes, debunked, ACLU (April
30, 2020), https://www.aclu.org/news/lgbtq-rights/four-myths-about-trans-athletes-debunked/.
9
See Section II.D, discussing the basis of the defendants’ argument in Soule et al. v. Conn. Ass’n
of Sch., Inc. et al., No. 3:20-cv-00201-RNC, 2020 WL 6580271 (D.Conn.) (Defendant’s Reply
Brief); see also Hecox v. Little, 479 F. Supp. 3d 930, 944 (D. Idaho 2020).214 Buzuvis, Litwin, Zola
Making arguments about excluding transgender athletes from participating
in sport is to deny them the substantial benefits that sport provides in developing
a person’s identity. The positive impact on a person’s development gained by
participating in sports, especially at an early age, cannot be underestimated.
While limiting access is often distilled into a single person missing a season in
a particular sport, this characterization does a disservice to the overwhelmingly
positive impact sports can have on the long-term success, mentally and physical-
ly, of the participant.
In general, sports teach transformative lifetime skills that are unable to be
recreated in the classroom. Participation in sports serves a critical and intended
educational purpose: contributing to important character traits such as leader-
ship, teamwork, dedication in the face of adversity, and the pursuit of a common
goal.10 These traits serve all participants well and provide a foundation of success
and training to be drawn upon during the rest of their lives, be it in an educational
setting, a career, or in daily life.
Alternatively, limiting access to these fundamental lessons offered by par-
ticipation can have disastrous effects on the physical and mental health of those
blocked from sports. Being shunned and excluded from a social activity because
of one’s identity wreaks havoc on self-worth and development—an impact that
lasts well into the future. And the law is clear, discriminating against transgender
athletes is illegal under a variety of legal principles and case law.11
The participation of transgender athletes is not new, as they have successful-
ly competed in sports for decades under a variety of rules and regulations. Since
2003, the International Olympic Committee (IOC) has allowed athletes to par-
ticipate based on their gender identity, albeit with some restrictions, which were
further loosened in 2016.12 The NCAA, under its Office of Inclusion, followed
suit in 2010 when it passed its own guidelines for transgender athletes to compete
in college sports.13 Despite federal case law and legislature, not unexpectedly,
states have their own opinions and have passed, or are trying to pass, a broad
range of rules and policies that address participation in education-based athletic
programs—ranging from those seeking to eliminate transgender participation
10
Jennifer Y. Mak and Chong Kim, Relationship among gender, athletic involvement, student or-
ganization involvement and leadership, 25, 2, Women Sport & Physical Activity J. 89, 93 (2017).
11
See Hecox, 479 F. Supp. 3d at 984.
12
Transgender athletes can now compete in Olympics without surgery, NY Times, (Jan. 25, 2016),
https://www.nytimes.com/2016/01/26/sports/olympics/transgender-athletes-olympics-ioc.html.
13
NCAA inclusion of transgender student-athletes, NCAA Office of Inclusion (Aug., 2011),
https://13248aea-16f8-fc0a-cf26-a9339dd2a3f0.filesusr.com/ugd/2bc3fc_4a135824fabc-
462183c71357c93a99b4.pdf.JLAS 31-2 ▪ 2021 215
entirely (such as Montana)14 and those allowing unfettered access (such as
Connecticut).15 What is needed are clear and unambiguous guidelines that allow
access based on equity and fairness on a national level.
This year, 2021, has been, and will continue to be, a year of dramatic change.
Most notably, in the United States the change in federal administrations from
former President Donald J. Trump’s administration to one led by current Presi-
dent Joseph R. Biden will have major ramifications for sports broadly and trans-
gender athletes specifically. A month after the election, more than 100 civil rights
advocates including the National Women’s Law Center, the American Federation
of Teachers, and Know Your IX urged President Biden to immediately stop en-
forcement of new Title IX regulations and initiate new rulemaking.16 Proposed
rulemaking would impact the Office of Civil Rights (OCR), a Department under
the United States Health and Human Services (HHS), which “ensures compli-
ance with our nation’s civil rights, conscience and religious freedom, health
information, privacy and security laws.”17 Leadership from within both HHS
and OCR will likely change as these government agencies offer broader LGBTQ
protections and access.
On his first day in office, President Biden signed an executive order making
it abundantly clear that gay and transgender people would have protection against
discrimination in schools, health care, and the workplace.18 By ensuring a broad
interpretation of the 2020 landmark Supreme Court decision in Bostock v. Clay-
ton County, GA,19 this administration immediately signaled gay and transgender
employees would be covered and protected by Title VII of the Civil Rights Act
of 1964.20 While this may appear radical given the previous administration’s
efforts, the current administration’s announcement simply confirms that the
federal government will follow the well-established law that protects LGBTQ
people from discrimination. Only when compared to recent history does such a
declaration seem newsworthy.
14
H.B. 112.3, 2021 Leg., 67th Sess. (Mo. 2021).
15
Rules of eligibility and control for boys and girls high school athletics in Connecticut, CIAC
Handbook at 55 (2021), https://www.casciac.org/pdfs/ciachandbook_2021.pdf.
16
Jackie Gharapour Wernz, Hundreds of organizations ask Biden for immediate change in Title
IX; How realistic are the demands? JD Supra (Dec. 14, 2020), https://www.jdsupra.com/legal-
news/hundreds-of-organizations-ask-biden-for-73784/.
17
Office for Civil Rights, OCR Mission & Vision, (Oct. 9, 2019), https://www.hhs.gov/ocr/about-
us/mission-vision/index.html.
18
Samantha Schmidt, Emily Wax-Thibodeaux, and Moriah Balingit, Biden calls for LGBTQ pro-
tections in Day 1 executive order, angering conservatives, Wash. Post (Jan 21, 2021), https://www.
washingtonpost.com/dc-md-va/2021/01/21/biden-executive-order-transgender-lgbtq/.
19
Bostock v. Clayton County, 590 U.S. 140, 140 S. Ct. 1731 (2020).
20
See id.216 Buzuvis, Litwin, Zola
In late February, the Biden administration made an even more explicit
and tangible statement on the federal government’s policy toward transgender
students participating in sports by withdrawing legal views filed by the Trump
administration.21 Notably, the OCR informed parties it was withdrawing a letter
previously submitted that interpreted Title IX to mean that transgender females
could not participate in sports in order to preserve opportunities for cisgender
women in the state of Connecticut.22 Additionally, the federal government noti-
fied a federal appeals court that it was withdrawing a brief, drafted by the Trump
administration, supporting an Idaho state law attempting to ban transgender
female athletes from competing in sports.23 These cases are discussed later in
detail, yet these actions by the Biden administration are a clear and public shift
in the overall position of the federal government related to transgender athletes.
With the federal government explicitly stating their intent to support equali-
ty, LGBTQ, and transgender rights in the years ahead, now is the time to provide
a clear roadmap for transgender participation in sports. This article does not offer
the broadest and easiest recommendation possible, that all athletes, at all levels,
be allowed to compete based on their gender identity rather than gender assigned
at birth. While the authors may hope this simple policy be implemented and
followed, we are proposing a more pragmatic approach that we anticipate is more
acceptable to those who currently oppose a simple unilateral rule. As such, what
follows is an attempt to develop policies and procedures that delineate acceptable
steps today, with a hope for a more inclusive policy in the future.
This article will address the current legal framework, including Title IX,
equal protection, and relevant case law. We will then discuss participation for
transgender athletes within the elementary and secondary educational systems,
advocating for a simple policy ensuring equity and access. Our attention will then
turn to other participant groups and recommendations for these organizations,
including college athletics, youth leagues, the International Olympic Committee
(IOC), and finally professional leagues. And rather than merely arguing that
change is necessary, we propose specific legislation that would comply with all
existing laws while extending greater protection to the transgender community.
21
Mark Walsh, Biden legal team steps back from Trump stance on transgender female sports
participation, Educ. Week (Feb. 24, 2021), https://www.edweek.org/policy-politics/biden-legal-
team-steps-back-from-trump-stance-on-transgender-female-sports-participation/2021/02.
22
See id.
23
See id.JLAS 31-2 ▪ 2021 217
Section I.
The following section will provide a brief background on the law governing
athletic participation by transgender athletes.
A. Title IX
Title IX of the Education Amendments of 1972 (Title IX) is a federal statute that
prohibits discrimination based on sex in education programs or activities that
receive federal financial assistance.24 Though educational institutions subject
to Title IX must generally make all programs open to students regardless of
sex, athletics is one place where the law permits separate programs for each
sex, so long as those programs are equitable.25 As of today, neither Title IX nor
its implementing regulations specify how the obligation to provide equitable
athletic opportunities to members of each sex should apply to athletes who are
transgender. Nor has any court been called upon to interpret whether Title IX
requires schools to allow transgender athletes to compete in the gender category
that matches their gender identity. However, as noted later in this article, courts
have found that Title IX protects the rights of transgender students to use sex-
segregated facilities like bathrooms and restrooms that correspond to their
affirmed genders.26
During the Obama administration, OCR announced its interpretation that
Title IX encompassed discrimination based on a student’s gender identity,
including protecting against discrimination based on a student’s transgender
status.27 At the time, OCR and the Department of Justice’s Civil Rights Division
jointly released nonbinding guidance (2016 Guidance) 28 interpreting a student’s
gender identity as a student’s “sex” under Title IX. The guidance notified schools
that Title IX prohibits them from treating transgender students differently
from how they treat other students of the same gender identity. However, the
Trump administration rescinded that policy, requiring that recipients of federal
funding provide separate athletic teams to separate participants solely based
on their biological sex, male or female, and not based on transgender status or
homosexuality.29
24
34 C.F.R. § 106.41(a)(b)(c).
25
34 C.F.R. § 106.37(b)(c).
26
See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 618 (4th Cir. 2020).
27
Dear Colleague Letter on Transgender Students, OCR (May 13, 2016), https://www2.ed.gov/
about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.
28
See id.
29
Dept. of Education Memorandum for Kimberly M. Richey, OCR (Jan. 8, 2021), https://www2.
ed.gov/about/offices/list/ocr/correspondence/other/ogc-memorandum-01082021.pdf.218 Buzuvis, Litwin, Zola
Another administrative development that occurred during the Trump admin-
istration was the enforcement action that OCR initiated against school districts in
Connecticut and the state’s interscholastic athletic association. Connecticut state
law prohibits discrimination based on gender identity, and this provision has
been interpreted to provide a right to transgender students to participate in sports
according to their affirmed genders.30 OCR sustained the complaint of cisgender
female high school athletes that the policy in Connecticut impairs their access to
athletic opportunities in violation of Title IX, but did not conclude the process by
which funding is withdrawn prior to the change of administration.31 The current
administration has subsequently withdrawn OCR’s decision.32
In a marked departure from the previous administration, President Biden’s
administration has signaled its intention to enforce Title IX in a way that max-
imizes protection for transgender rights. Though it has not yet initiated any en-
forcement actions against schools that restrict the rights of transgender athletes,
it has issued an interpretive rule clarifying that the Supreme Court’s holding
in Bostock, that Title VII’s sex discrimination provision inherently prohibits
discrimination on the basis of one’s transgender status, also extends to Title IX.33
Courts have not yet had the opportunity to decide whether denying a trans-
gender student the right to participate in sports consistent with their affirmed
gender violates that student’s rights under Title IX. However, Title IX litigation
in the analogous context of bathrooms and locker rooms has resulted in several
judicial interpretations of Title IX confirming that a school’s failure to affirm
transgender students’ gender identities, while doing so for cisgender students, is
a form of sex discrimination prohibited by the statute.34 For example, in Grimm,
the ACLU filed suit against the Gloucester County School Board for adopting a
discriminatory bathroom policy that segregates transgender students from their
peers.35 The school policy restricted transgender students from using communal
30
See An Act Concerning Discrimination, 2011 Conn. Pub Acts 11-55.
31
Kimberly Drelich, Compromise reached over magnet school funding for Groton, Norwich and
LEARN, The Day (Sep. 24, 2020), https://www.theday.com/article/20200924/NWS01/200929650.
32
Walsh, supra note 21. The complainants seeking administrative enforcement also filed a law-
suit in federal court, advancing the same Title IX arguments and referring to transgender athletes
as “males claiming transgender identities.” Soule, 2020 WL 6580263. The lawsuit was ultimately
dismissed on grounds of mootness. Soule et al. v. Conn. Ass’n of Sch., Inc. et al., No. 3:20-cv-
00201-RNC, 2021 WL 1617206, at *5 (D. Conn. Apr. 25, 2021).
33
U.S. Dep’t of Educ., Enforcement of Title IX of the Education Amendments of 1972 With
Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v.
Clayton County, 86 FR 32637 (June 22, 2021).
34
Grimm, 972 F.3d at 618.
35
See id.JLAS 31-2 ▪ 2021 219
restrooms aligning with their gender identities.36 The Fourth Circuit found that
transgender students were entitled to protection from school bathroom policies
that prohibit them from affirming their gender.37 Modern recognition of trans-
gender students’ rights in bathroom cases is an indicator that Title IX should be
treated in the same way.
B. State Law
Though many state athletic associations have created policies governing the
participation of transgender athletes, it is rarer for the issue to be addressed as
a matter of public law (state statute, or state agency interpretation of a statute).
Among these states, only California’s nondiscrimination statute expressly secures
transgender athletes’ right to participate in sex-segregated sports that match their
gender identity, in the elementary and secondary school setting.38 In two more
states, Massachusetts and Connecticut, state agencies have interpreted the state’s
statutory ban on gender identity discrimination to provide transgender students
with the unqualified right to participate in sports that match their gender identity.39
State law also has been used to restrict the rights of transgender athletes. In
2020, Idaho enacted the Fairness in Women’s Sports Act (the Fairness Act or Act)
to categorically bar transgender women from participating in women’s sports.40
The Act expressly designates that teams for women or girls should be based on
biological sex and subjects all women student-athletes to the risk of having to
undergo invasive testing, while permitting male student-athletes to participate
without such risk.41 Specifically, the Act provides, a health care provider can
verify a student’s sex relying only on one or more of the following: her reproduc-
tive anatomy, genetic makeup, or normal endogenously produced testosterone
levels.42 Evaluating any of these criteria would require invasive examination, and
36
See id.
37
See id.
38
California Educ. Code 221.5(f) (“A pupil shall be permitted to participate in sex-segregated
school programs and activities, including athletic teams and competitions, and use facilities con-
sistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”).
39
Guidelines for Connecticut Schools to Comply with Gender Identity and Expression Non-dis-
crimination Laws, Connecticut Safe School Coalition, at 9 (2012), http://www.ct.gov/chro/lib/chro/
Guidelines_for_Schools_on_Gender_Identity_and_Expression_final_4-24-12.pdf (“Transgender
students should be permitted to participate in sex-segregated athletic activities based on their gen-
der identity”); Guidance for Massachusetts Public Schools Creating a Safe and Supportive School
Environment, Massachusetts Dep’t of Elementary & Secondary Educ. (Feb. 15, 2013), http://www.
doe.mass.edu/sfs/lgbtq/GenderIdentity.html (“all students must be allowed to participate in a
manner consistent with their gender identity”).
40
See Idaho Code § 33-6203.
41
See id.
42
See id.220 Buzuvis, Litwin, Zola
testing would also necessarily reveal extremely personal health information such
as a student’s precise genetic makeup. Moreover, in permitting this criteria in
response to “a dispute regarding a student’s sex,” the Act creates the possibility
that any student’s sex can be examined in this way, whether the student is cis or
trans. Still, only participants in women’s sports are exposed to this risk of public
intrusion into one’s private medical information.
The Idaho law is at odds with NCAA policy, which permits transgender
women to compete on a women’s team after one year of hormone treatment.43
The state law thus creates a dilemma for NCAA member institutions located in
Idaho. To comply with state law, they must violate the policy of their membership
organization or vice versa. It is also potentially at odds with Title IX and creates
a dilemma for Idaho schools: compliance with state law or compliance with Title
IX. Title IX does not directly prohibit states from passing conflicting laws, but it
would render schools in that state ineligible to receive federal funding on which
Title IX is conditioned.44 The Fairness Act has also been challenged on constitu-
tional grounds, as discussed in the next subsection.
Despite actual or potential conflicts with NCAA policy, Title IX, and the
U.S. Constitution, the Fairness Act has inspired duplication in a number of other
states. As of July 1, 2021, eight states in addition to Idaho have passed laws
excluding transgender women and girls from scholastic sports or scholastic and
collegiate sports: Alabama, Arkansas, Florida, Mississippi, Montana, South Da-
kota, Tennessee, and West Virginia, and bills remain pending in several more.45
C. Constitutional Protections
The U.S. Constitution’s Equal Protection clause is an emerging source of
protection for transgender rights, including in the context of sex-segregated
spaces like bathrooms and locker rooms. For example, the Seventh Circuit Court
of Appeals enjoined a high school’s policy prohibiting a transgender student
from using the restroom that matched his gender identity after recognizing the
likelihood that the student would prevail on his constitutional claim.46 The court
applied heightened scrutiny and determined that the policy was not supported
43
Hecox, 479 F. Supp. 3d at 988.
44
Title IX, 20 U.S.C. 1681; see also Mariel Padilla, The 19th explains: What did Title IX changes
just do for trans students?, The 19th (June 22, 2021), https://19thnews.org/2021/06/the-19th-ex-
plains-what-did-title-ix-changes-just-do-for-trans-students/.
45
Movement Advancement Project, Bans on transgender youth participation in sports (last
visited July 1, 2021) https://www.lgbtmap.org/equality-maps/sports_participation_bans. See also
Legislation affecting LGBT rights across the country, ACLU (2021), https://www.aclu.org/legisla-
tion-affecting-lgbt-rights-across-country.
46
See Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1050-52 (7th
Cir. 2017).JLAS 31-2 ▪ 2021 221
by a genuine and exceedingly persuasive rationale, rejecting that the policy was
tailored to secure the privacy of other students.47
Currently, legal challenges to Idaho’s law already discussed will provide the
first opportunity for the courts to consider whether the Equal Protection doctrine
that protects a transgender student’s right to be treated according to their affirmed
gender in the context of sex-segregated facilities extends to sex-segregated ath-
letic opportunities as well.48
In Hecox v. Little, Lindsay Hecox, a 19-year-old transgender woman, along
with Jane Doe, a cisgender woman, challenged the constitutionality of the Fair-
ness in Women’s Sports Act.49 As a transgender college student at Boise State
University, Lindsay was barred by the Act from competing and trying out for
the women’s track team. Lindsay seeks to enjoin the Act on the grounds that it
effectively permits discriminatory treatment based on an athlete’s transgender
status in violation of her constitutional rights.50
In August, the federal district court granted her injunction after finding a
likely success on the merits of her claim. Applying circuit court precedent, the
court acknowledged that state policies separating students by sex for athletic par-
ticipation can be justified by the “legitimate and important governmental inter-
est” of “redressing past discrimination against women in athletics and promoting
equality of athletic opportunity between the sexes.”51 The precedent in question,
Clark v. Arizona Interscholastic Athletic Association, upheld schools’ exclusion
of boys from girls’ volleyball teams on these grounds, out of concern that that
“the physiological fact that males would have an undue advantage competing
against women,” and would diminish opportunity for females.52
However, the district court recognized that Hecox is distinct from Clark be-
cause, first, like women generally, women who are transgender have historically
been discriminated against, not favored.53 Second, unlike the boys in Clark who
generally had equal athletic opportunities, women and girls who are transgender
will not be able to participate in any school sports if Idaho’s law is upheld.54
Third, given that less than 1% of the population is transgender, cisgender girls are
not vulnerable to displacement by transgender girls compared to displacement
47
See id; see also Evancho v. Pine-Ridgeland Sch. Dist., 237 F. Supp. 2d 267, 292-93 (W.D. Pa.
2017); Highland Local Sch. Dist. v. Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016).
48
See Hecox, 479 F. Supp. 3d at 988.
49
See id. at 946.
50
See id.
51
Id. at 952 (citing Clark, 695 F.2d at 1131).
52
Id.
53
See Barron, 286 F. Supp. 3d, 1143–1145 (2018).
54
See Clark, 695 F.2d at 1131.222 Buzuvis, Litwin, Zola
by cisgender boys.55 Finally, it is not clear that transgender women who suppress
their testosterone have significant physiological advantages over cisgender wom-
en.56 Additionally, the Court questioned the Act’s legislative findings, including
a study by Doriane Lambelet Coleman, which purportedly demonstrates the
“absolute advantage” of transgender women.57 Notably, Coleman asserts that her
work was misused and urged Governor Brad Little to veto H.B. 500.58 The Court
noted that compelling evidence demonstrates that equality in sports is not jeop-
ardized by allowing transgender women who have suppressed their testosterone
for one year to compete on women’s teams.59
The fact that a cisgender woman serves as Lindsay Hecox’s co-plaintiff un-
derscores other constitutional weaknesses in H.B. 500. The district court found
that in subjecting athletes to the possibility of invasive medical testing, H.B. 500
imposed “a more onerous set of rules on women’s sports” that not only fail to ad-
vance, but actually undermine the important state interest in promoting athletic
opportunities for women and girls.60 The district court’s reasoning reveals how
laws like Idaho’s infringe not only transgender athletes’ rights but all high school
students and women.
Section II.
In Section II, we begin our analysis by illustrating the value of youth sports.
The harm caused to girls broadly, and transgender students specifically, who are
denied opportunities to participate in sports at the elementary and secondary
school level is examined. We then propose that OCR use the notice-and-
comment process to revise Title IX’s implementing regulations to require school
districts and other K-12 institutions to permit transgender athletes to participate
in athletics according to their gender identity. Under our proposed regulatory
revision, elementary and secondary schools subject to Title IX are not permitted
to impose hormone or other medical requirements as a condition for participation.
A. Scholastic and Youth Sports Matter
While consensus on any topic is virtually unheard of in today’s world, there
is one statement that receives unilateral support and agreement—the benefits
of participating in youth sports have long-term physical and mental benefits
55
Id.
56
Hecox, 479 F. Supp. 3d at 978.
57
See id. at 980.
58
Id. at 981.
59
Id.
60
Id. at 985-86.JLAS 31-2 ▪ 2021 223
for all. Research and science make this abundantly clear, and as a result, the
United States federal government has made access and participation a national
priority for centuries. In 1953, Dr. Hans Kraus and Ruth Hirschland (also known
as Bonnie Prudden) published research findings about the poor state of physical
fitness among American elementary school students.61 Following a subsequent
article by Kraus and Hirschland two years later, comparing the poor health of
youth in the United States to those in Europe,62 President Dwight D. Eisenhower
was shocked into action and, in an attempt to make fitness a priority, founded
the President’s Council on Youth Fitness, which is now known as the President’s
Council on Physical Fitness and Sports.63
In 2018, President Trump issued Executive Order 13824, which was an
attempt to “expand and encourage youth sports participation, and to promote
the overall physical fitness, health, and nutrition of all Americans”64 (emphasis
added). The order went on to declare, “Good health, including physical activity
and proper nutrition, supports Americans’, particularly children’s, well-being,
growth, and development. Participating in sports allows children to experience
the connection between effort and success, and it enhances their academic, eco-
nomic, and social prospects.”65
As a consequence of this order, in 2019 HHS released a 112-page report,
The National Youth Sports Strategy, 66 which continues to promote the benefits
of youth sports participation for all.67 Notably, even the Trump administration
proposed that the primary focus of youth sports should not be on winning but
rather on developing skills, improving performance, and achieving goals.68
When athletic programs and sport teams are bias-free and inclusive, all
athletes have a greater likelihood of having positive sporting experiences and
gaining the benefits of team sports (e.g., leadership skills, self-confidence,
teamwork). In contrast, when youth expect or experience harassment or denial
61
Hans Kraus & Ruth P. Hirshland, Muscular fitness and health, 24 J. of the A m. Ass’n for
Health, Physical Educ., and R ecreation (1953).
62
Robert Boyle, The report that shocked the President, Vault (Aug. 15, 1955), https://vault.
si.com/vault/1955/08/15/the-report-that-shocked-the-president.
63
HHS, https://www.hhs.gov/about/index.html (last visited Feb. 23, 2021).
64
Exec. Order No. 13824, President’s Council on Sports, Fitness, and Nutrition (Feb. 26, 2018),
https://www.govinfo.gov/content/pkg/DCPD-201800119/pdf/DCPD-201800119.pdf.
65
Id.
66
National Youth Sports Strategy, HHS (2019), https://health.gov/sites/default/files/2019-10/Na-
tional_Youth_Sports_Strategy.pdf.
67
HHS, https://www.hhs.gov/about/index.html (last visited Feb. 23, 2021).
68
The National Youth Sports Strategy, Office of the Assistant Secretary for Health (2019), https://
health.gov/sites/default/files/2019-10/National_Youth_Sports_Strategy.pdf.224 Buzuvis, Litwin, Zola
of identity, this can deter future sport and physical activity involvement.69 For
adolescent students, in particular, sports team participation may be the major
route by which they are physically active, and multiple studies suggest that par-
ticipation on sports teams is also associated with better academic outcomes.70
The unimpeachable reality is that participating in youth and scholastic sports
serves as a critical development tool in the mental and physical wellbeing of all
members of society. Therefore, any restriction of such a valuable opportunity is
incompatible with government policy.
B. Women’s Athletic Opportunities Face Other Real Threats
In 1872, the Supreme Court declared that “a woman’s place was in the home”
in rejecting an equal protection argument by a woman who challenged a state
of Illinois law denying women the opportunity to the state’s bar examination.
71
Thankfully, times have changed. Constitutional and statutory civil rights
recognize and protect women’s equal rights to public life, employment, and
education opportunities—including school-sponsored athletics. However,
notwithstanding Title IX’s requirement for equity in the distribution of athletic
opportunities, 72 the right to participate is not available equally to all.
Research indicates that the participation rates for girls and underserved
populations are dramatically lower than others—a gap that is closing but one
that is still unfortunately significant.73 As a general trend, between the ages of
69
See Calzo et al., Physical activity disparities in heterosexual and sexual minority youth ages
12-22 years old: Roles of childhood gender nonconformity and athletic self-esteem, ABM: Pub.
Society of Behavioral Medicine (2014).
70
See Claudia Fox et al., Physical activity and sports team participation: Associations with aca-
demic outcomes in middle school and high school students, J. Sch. Health (2010).
71
Bradwell v. The State of Illinois, 83 U.S. 130, 139 (1872).
72
See 34 C.F.R. § 106.37(c) (requiring equitable athletic opportunities); Dep’t of Health, Educ.
and Welfare, Office for Civil Rights, A Policy Interpretation: Title IX and Intercollegiate Athlet-
ics, 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979) (creating the three-part test which requires schools
to demonstrate (1) that participation opportunities for male and female students are provided in
numbers substantially proportionate to their respective enrollments; or (2) that there is a history
and continuing practice of program expansion that is demonstrably responsive to the developing
interests and abilities of the members of that gender; or (3) that the interests and abilities of the
members of that gender have been fully and effectively accommodated by the present program.
See also Cohen v. Brown, 101 F.3d 155, 176 (1st Cir. 1996) (applying the three-part test and reject-
ing that women’s ostensible lack of interest was a factor in measuring compliance under the third
part of the test).
73
The Child and Adolescent Health Measurement Initiative, NSCH Data R esource Center for
Child & A dolescent Health (2017), http://www.childhealthdata.org.JLAS 31-2 ▪ 2021 225
6 to 10, girls’ participation in sports lags behind that of boys by 10 percentage
points,74 and the gap between high school boys’ and girls’ participation has not
significantly narrowed in the past 20 years.75
Female high school athletes receive 1.13 million fewer chances to partici-
pate in sports than their male counterparts (3.4 million females vs. 4.5 million
males).76 Female athletes receive 61,000 fewer opportunities at NCAA insti-
tutions (221,000 female vs. 282,000 male).77 In 2017-18, only 8.6% of NCAA
Division I institutions (30 of 348) offered athletic opportunities to female athletes
proportional to their enrollment.78 Female college athletes receive $240 million
less in NCAA athletic scholarships.79 These disparities are partially attributed
to Title IX’s relatively weak enforcement mechanisms80 that allow educational
institutions to avoid accountability for prioritizing the growth of men’s sports
before gender equity has been achieved, and for cutting women’s teams even
when women have disproportionately few athletic opportunities. In addition,
these disparities have been exacerbated by a nationwide trend of cuts to women’s
athletic programs as a result of the COVID-19 pandemic. Economic ramifica-
tions of the pandemic have caused university athletic departments to eliminate
74
State of play 2018: Trends and developments, Aspen Institute (2018), https://assets.aspeninsti-
tute.org/content/uploads/2018/10/StateofPlay2018_v4WEB_2- FINAL.pdf.
75
Zarrett et al., Promoting physical activity within under-resourced afterschool programs: A
qualitative investigation of staff experiences and motivational strategies for engaging youth, A ppl
Dev Sci. (2018).
76
National Federation of State High School Associations (NFHS) (2019).
77
National Collegiate Athletic Association, NCAA sports sponsorship and participation rates
(2020), https://www.ncaa.org/about/resources/research/ncaa-sports-sponsorship-and-participa-
tion-rates-database.
78
Equity in Athletics Disclosure Act Data Analysis Cutting Tool, U.S. Dep’t of Educ. (2019),
https://ope.ed.gov/athletics/#/.
79
See id.
80
Title IX permits both government enforcement as well as private lawsuits. Public enforcement
allows OCR to use the threat of withheld federal funding to motivate compliance, but the agency
has never taken this step. Instead, it enters into resolution agreements that allow institutions to
avoid funding withdrawal by agreeing to do that which the law already requires. Private lawsuits
are usually only filed when there are highly motivated plaintiffs, such as the disappointed mem-
bers of an unlawfully terminated women’s team or other cases of extreme or pervasive inequality.
While they might factor into some universities’ decisions not to eliminate women’s teams, they
likely do not motivate educational institutions to prospectively correct long-standing inequalities
at great cost. On the limits of public enforcement, see e.g., Julie A. Davies & Lisa M. Bohon,
Re-imagining public enforcement of Title IX, 2007 BYU Educ. & L.J. 25, 50-54 (2007); Sudha
Setty, Leveling the playing field: Reforming the Office for Civil Rights to achieve better Title IX
enforcement, 32 Column. J.L. & Soc. Probs. 331, 340-42 (1999).226 Buzuvis, Litwin, Zola
women’s programs, notwithstanding the fact that college women were already
disadvantaged in the distribution of athletic opportunities by sex.81
For example, in July 2020, Dartmouth announced that it was eliminating
the women’s varsity intercollegiate golf and swimming and diving teams.82 It
claimed that the elimination of these women’s programs would not impact the
percentage of women among varsity athletes as compared to the percentage of
women in the undergraduate student body, thus ensuring compliance with Title
IX. However, Dartmouth’s undergraduate enrollment in 2019-2020 was 49.06%
women, but the school offered females only 44.87% of the opportunities to par-
ticipate in intercollegiate athletics.83 There was a gap of 4.19% between women’s
undergraduate enrollment rates and their intercollegiate athletic participation
rates.84 With the elimination of the five teams, the athletic participation numbers
dropped to 456 men and 392 women.
Female student-athletes threatened to file a class action lawsuit in federal
court against Dartmouth for depriving women student-athletes and potential ath-
letes of equal opportunities and treatment unless the school agreed to reinstate
the teams and comply with Title IX.85 In January 2021, Dartmouth reversed its
decision, agreeing to reinstate the teams to develop a gender equity plan, and
come into full compliance with Title IX to avoid a threatened class action sex
discrimination lawsuit.86
In another example, the University of Iowa announced in August 2020 that it
would be eliminating women’s swimming and diving as a varsity intercollegiate
sport for the 2021–22 academic year. Iowa’s athletic director, Gary Barta, had
81
For an ongoing tracker on the sports cut by various colleges around the country, refer to
Tracker: College sports programs cut during COVID-19 pandemic, BCS, https://businessofcol-
legesports.com/tracker-college-sports-programs-cut-during-covid-19-pandemic/ (last visited July
8, 2021).
82
Justin Kramer, Addison Dick and Lili Stern, Dartmouth cuts five sports teams and closes
Hanover Country Club, The Dartmouth (July 9, 2020), https://www.thedartmouth.com/arti-
cle/2020/07/dartmouth-cuts-five-sports-teams-and-closes-hanover-country-club.
83
Press Release, Bailey & Glasser, LLP, Dartmouth College agrees to reinstate women’s golf,
swimming & diving; Develop gender equity plan; and comply with Title IX (Jan. 21, 2021), https://
www.baileyglasser.com/pp/news-dartmouth-college-agrees-reinstate-womens-golf-swimming-
diving-title-ix.pdf.
84
Id.
85
Annika Johnson, Dartmouth reinstates all 5 programs after Title IX claims, Swim Swam (Jan.
29, 2021), https://swimswam.com/dartmouth-reinstates-all-5-programs-after-title-ix-claims/.
86
Press Release, Bailey & Glasser, LLP, Dartmouth College agrees to reinstate women’s golf,
swimming & diving; Develop gender equity plan; and comply with Title IX, at 3 (Jan. 21, 2021),
https://www.baileyglasser.com/pp/news-dartmouth-college-agrees-reinstate-womens-golf-swim-
ming-diving-title-ix.pdf.JLAS 31-2 ▪ 2021 227
said his decision to end the women’s swimming program was based on cost-sav-
ing measures prompted by the COVID-19 pandemic, and he contended that the
school was Title IX-compliant in doing so. However, the most recent data from
the University’s 2018–19 Equity in Athletics Disclosure Act (EADA) report dis-
closes a 49.2%-50.8% male-female student-athlete ratio despite a student body
consisting of only 46.4% men and 53.6% women—a 2.8% disparity that reflects
47 fewer athletic opportunities for women than there would be if participation
were substantially proportionate to their representation on campus, even before
any discussion of cutting women’s programs.87 In addition, data showed that the
way Iowa has been counting its varsity participants, particularly the female ones,
has concealed other opportunities for women’s sport teams.88
A group of women athletes challenged the university’s decision in federal
district court. Initially, the university stood its ground, stating that its continued
ability to adequately support all of its intercollegiate athletics programs was no
longer viable. In December 2020, the Court granted a preliminary injunction
against the school to stop the University of Iowa from dropping women’s swim-
ming for the 2021-2022 school year.89
By February 2021, Iowa decided to change course, announcing that they
would not eliminate the women’s programs. While Iowa’s athletic director told
the athletes that swimming has been preserved “indefinitely,” he offered no apol-
ogy or admission that he had been wrong to put the sport in jeopardy in the first
place.90 Meanwhile, elsewhere in the Big Ten Conference, Michigan State still
faces a similar Title IX lawsuit over its plans to discontinue women’s swimming.
Brown University,91 East Carolina University,92 and William & Mary93 also faced
litigation or litigation pressure after announcing COVID-related cuts to women’s
87
See Ohlensehlen v. Univ. of Iowa, 2020 WL 7651974, at 3 (S.D. Iowa Dec. 24, 2020).
88
Id.
89
Id. at 14.
90
Mark Emmert, Iowa reverses decision to cut women’s swimming and diving but still faces
Title IX challenge, H awk Central (Feb. 15, 2021), https://www.hawkcentral.com/story/sports/
college/iowa/2021/02/15/iowa-swimming-diving-gary-barta-title-ix-lawsuit-hawkeye-athlet-
ics/6757296002/.
91
Brown university to reinstate women’s equestrian and fencing to comply with title ix and pro-
vide equal opportunity for women athletes, ACLU (Sep. 17, 2020), https://www.aclu.org/press-re-
leases/brown-university-reinstate-womens-equestrian-and-fencing-comply-title-ix-and-provide.
92
D’Arcy Maine, East Carolina reinstates women’s swimming, tennis, ESPN (Jan. 7, 2021),
https://www.espn.com/college-sports/story/_/id/30668871/east-carolina-reinstates-women-swim-
ming-tennis.
93
Rick Seltzer, William & Mary backtracks on cutting women’s sports, Inside Higher Ed. (Oct.
20, 2020), https://www.insidehighered.com/quicktakes/2020/10/20/william-mary-backtracks-cut-
ting-womens-sports.228 Buzuvis, Litwin, Zola
teams and agreed to restore those teams as a result of settlements reached in late
2020. For these schools, enforcement operated to protect women’s athletic oppor-
tunities, but as higher education endures this grueling pandemic the unfortunate
reality is that women’s sports will likely to continue to be at risk of elimination.94
The existing and expanding inequities that result from educational institu-
tions’ choices to diminish and constrain women’s sports discussed in this sub-
section contextualize claims that inclusion of transgender athletes threatens to
meaningfully diminish athletic opportunities for girls and women. Even setting
aside the most important point, that transgender girls are girls, and therefore
have the same access to girls’ sports as any other girl, the potential displacement
caused by the inclusion of a group that constitutes less than 1% of the popula-
tion95 pales in comparison to the extant inequality that educational institutions
themselves have already caused and failed to remedy in Title IX’s almost 50-year
history. The argument is also ironic in its failure to recognize that transgender
girls face not only the same diminished opportunities as cisgender girls, but
additional barriers to participation unique to them. A Women’s Sports Foun-
dation report identified intolerance to gender nonconformity as a key barrier to
participation.96 According to a survey conducted by Dennison & Kitchen, 84%
of Americans indicated that they either witnessed or experienced anti-LGBT
attitudes in sport.97 Beliefs driven by stereotypes and discrimination continue to
keep many girls and women from fully participating in sport.98 Peer pressure to
conform to gender norms is also a factor in constraining women’s participation
in sports. In a survey of girls,99 nearly one-third (32%) reported that sometimes
boys made fun of them or made them feel uncomfortable while they practiced.
In an analysis of physical activity disparities between heterosexual and sexual
minority youth between the ages of 12 and 22 years, sexual minorities (lesbian,
gay, bi-sexual, mostly heterosexual) were 46%-76% less likely to participate in
94
For an in-depth study on the impact that COVID-19 has had on college athletics, see Ryan
Swanson & Allison B. Smith, COVID-19 and the cutting of athletic teams, 23 Sport in Society, at
1724 (2020).
95
See Section I.C, discussing this reasoning as a basis for the district court’s enjoining Idaho’s
restrictive statute in Hecox.
96
Chasing Equity Executive Summary, Women’s Sports Found. (2020), https://www.womens-
sportsfoundation.org/wp-content/uploads/2020/01/Chasing-Equity-Executive-Summary.pdf.
97
Dennison E., & Kitchen A., Out on the fields: The first international study on homophobia
in sport, Nielsen, Bingham Cup Sydney 2014, Australian Sports Commission, Federation of Gay
Games, Out on the Fields (2015), http://www.outonthefields.com/media/#United%20States.
98
Chasing Equity Report, Women’s Sports Found. (2020), https://www.womenssportsfoundation.
org/wp-content/uploads/2020/01/Chasing-Equity-Full-Report-Web.pdf.
99
Nicole Zarrett, Cheryl Cooky & Philip Veliz, Coaching through a gender lens: Maximizing
girls’ play and potential, Women’s Sports Found. (2019).JLAS 31-2 ▪ 2021 229
team sports than their same-sex heterosexual peers.100 Women’s sports are facing
a real threat, but the culprit is not transgender athletes.
C. Sports Participation Is Particularly Valuable for Transgender
Students
“The true measure of any society can be found in how it treats its most vulnerable
members.” — Mahatma Gandhi101
In general, transgender students suffer disproportionately to others, a
fact even more heightened during their high school years. And while this is a
relatively small segment of the overall population, the challenges are real and
consequential. Unfortunately, transgender people have worse health outcomes
than cisgender people. Transgender people are reluctant to seek medical care;
they often experience discrimination by medical staff, or staff are unfamiliar
with issues they face and do not provide guideline-supported care.102
In particular, sport spaces such as locker rooms and athletic facilities have
been singled out as unsafe by transgender students.103 Research shows bullying
related to sexual and gender identities is strongly related to contemplation of
suicide in sexual and gender minority youth.104 These kids often feel different, or
uncomfortable in their bodies.105 When students feel targeted due to sexual and
gender identities, they will be less likely to join school athletic teams and may not
100
Calzo, supra note 78.
101
Attributed to Mahatma Gandhi despite debate over source, see Paul Knight, Letter: Quote
from Humphrey, not Gandhi, THE Columbian (2016), https://www.columbian.com/news/2016/
nov/11/letter-quote-from-humphrey-not-gandhi/; refer to David I. Conway, Alex D. McMahon,
Denise Brown, & Alastair H. Leyland., Reducing social inequalities in cancer: Evidence and
priorities for research, NCBI (2019), https://www.ncbi.nlm.nih.gov/books/NBK566205/.
102
Lauren Wilson, Commentary: When it comes to transgender athletes, let the kids play, 406
MT Sports (Jan. 20, 2021), https://406mtsports.com/406mtsports/commentary-when-it-comes-to-
transgender-athletes-let-the-kids-play/article_64c5145f-517c-54da-9bfd-3a9e84bd2d74.html.
103
Kosciw et al., Developing physically active girls, Tucker Center for R esearch on Girls
& Women in Sport, at 148 (2016), https://www.cehd.umn.edu/tuckercenter/library/docs/re-
search/2018-Tucker-Center-Research-Report_Developing-Physically-Active-Girls_Full-Report.
pdf.
104
Michele Ybarra, Kimberly J. Mitchell, Joseph Kosciw & Josephine Korchmaros, Understand-
ing linkages between bullying and suicidal ideation in a national sample of LGB and heterosexual
youth in the United States, Prev. Sci. (2014).
105
Lauren Wilson, Commentary: When it comes to transgender athletes, let the kids play, 406
Mt Sports (Jan. 20, 2021), https://406mtsports.com/406mtsports/commentary-when-it-comes-to-
transgender-athletes-let-the-kids-play/article_64c5145f-517c-54da-9bfd-3a9e84bd2d74.html.230 Buzuvis, Litwin, Zola
be physically active.106 Limitations on transgender student-athletes impacts their
ability to find lifetime success arising from exposure to sports.
A recent Gallup poll indicates more young people identify at LGBTQ+ than
ever before.107 This reality will continue to shape policies and laws into the fu-
ture. And when considering the youth transgender population, according to the
United States Centers for Disease Control and Prevention (CDC) data from 2018,
nearly 2% of high school students in the United States identify as transgender.108
Despite the growing numbers of those that identify as transgender, data show
that this segment of children suffers considerably:
• 27% feel unsafe at school or traveling to or from campus
• 35% are bullied at school
• 35% attempt suicide109
In a large national study, 86% of those perceived as transgender in a K–12
school experienced some form of harassment, and for 12%, the harassment was
severe enough for them to leave school.110 Pushing young people away from
their gender identity has extremely harmful consequences. Denying transgender
student-athletes the opportunity to compete consistent with their gender iden-
tity stigmatizes them and withholds affirmation of their gender identity that is
required for positive self-image. Rejecting transgender identity may lead some
students to withdraw or be distant from others. If questioning youth do not com-
municate their feelings or fears, they will not gain important social support to
help them feel more comfortable.111
Forcing transgender children to play on teams according to their sex as-
signed at birth, rather than the gender they live in, undermines their ability to
belong to their community as their authentic selves, essentially excluding them
from sports participation.112 Transgender people who are not able to transition or
106
Calzo, supra note 74.
107
Jeffrey M. Jones, LGBT identification rises to 5.6% in latest U.S. estimate, Gallup (Feb. 24,
2021), https://news.gallup.com/poll/329708/lgbt-identification-rises-latest-estimate.aspx.
108
Valerie Strauss, CDC: Nearly 2 percent of high school students identify as transgender—and
more than one-third of them attempt suicide, Wash. Post (2019), https://www.washingtonpost.com/
education/2019/01/24/cdc-nearly-percent-high-school-students-identify-transgender-more-than-
one-third-them-attempt-suicide/.
109
Id.
110
2015 U.S. Transgender Survey: Idaho State Report, National Center for Transgender Equal-
ity, at 1–2 (Oct. 2017), https://www.transequality.org/sites/default/files/docs/usts/USTSIDStateRe-
port%281017%29.pdf.
111
Kosciw, supra note 112.
112
Lauren Wilson, Commentary: When it comes to transgender athletes, let the kids play, 406
MT Sports (Jan. 20, 2021), https://406mtsports.com/406mtsports/commentary-when-it-comes-to-
transgender-athletes-let-the-kids-play/article_64c5145f-517c-54da-9bfd-3a9e84bd2d74.html.You can also read
